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Advanced full-text search Advanced catalog search Search tips. Search HathiTrust. Tools Cite this Export citation file. Similar Items The doctrine of absolute predestination stated and asserted, with a preliminary discourse on the divine attributes. Author Zanchi, Girolamo, At the head of this doctrinal line is Luther v. Luther arose out of the political disturbances in Rhode Island in and , now known as the Dorr Rebellion. That constitution went into effect in Also in , Luther, now a citizen of Massachusetts, sued Borden for trespass in federal diversity jurisdiction.

Chief Justice Taney, speaking for the Court, concluded that the identity of the lawful government of a state was a political question to be decided by the political branches of the federal government, whose decision would bind the courts. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. By statute, Congress had authorized the President to call out the militia to suppress insurrection.

When the President recognizes a foreign government or the government of a state, he makes a legal judgment concerning specific facts. Indeed, the Chief Justice noted that Congress could have required the judiciary rather than the President to decide whether an insurrection had occurred, and in the process to determine which organization was the rightful government of a state.

The Chief Justice agreed with the Dorr rebels that the people of a state may change their government at their pleasure. But whether they have changed it or not by abolishing an old government, and establishing a new one in its place, is a question to be settled by the political power. And when that power has decided, the courts are bound to take notice of its decision, and to follow it. Chief Justice Taney said that when Congress admits the senators and representatives of a state, the republican form of its government is conclusively established.

Oregon , [38] Oregon imposed a tax on corporations, including the Pacific States Telephone Company, via the initiative process. IV of the Constitution. In doing this it pointed out that owing to the inherent political character of such a question its decision was not by the Constitution vested in the judicial department of the Government, but was on the contrary exclusively committed to the legislative department by whose action on such subject the judiciary were absolutely controlled.

Having found that only Congress could determine that a state government is unrepublican, and that Congress had not done so, the Court dismissed the writ of error for want of jurisdiction. The Court had said that in Luther. Whether that statement was a holding is not clear, but if it was a dictum in the nineteenth century, the statement became a holding in the twentieth.

A binding determination by a political actor may resolve a case only in part. Luther , for example, turned not only on the lawfulness of the Charter government, but also on its imposition of martial law. Only once the Court had concluded that a lawful government had lawfully imposed martial law was it able to conclude that the defense of official privilege was available and give judgment for the defendant.

Luther rested on political branch finality concerning questions of sovereignty and relations among sovereigns. Recognition of foreign governments is one example of that category. Congress may pass statutes only through the process set out in Article I, Section 7. The Constitution may be amended only through the process set out in Article V.

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The Court has found non-judicial finality with respect to aspects of those enactment processes. When bills are submitted to the President for signature or veto, they bear the statement of the Speaker of the House and President or President Pro Tempore of the Senate that the House and Senate passed the bill. In Field v. Clark , [55] a taxpayer argued that a statute levying a tax was invalid because the text of the document signed by the President pursuant to congressional certification and promulgated by the Secretary of State pursuant to statute was not the text that had been agreed to by both houses of Congress.

Whether a purported vote in the House of Representatives constituted passage of a bill, and if so what the content of the bill was, are legal judgments. Although it is part of the legislative process, certification that a bill was adopted resembles adjudication in that it involves legal judgment but no policy choice. The enrolled bill doctrine gives conclusive effect in court to that judgment. Miller , [59] also rests on non-judicial finality under the political question rubric.

A majority of the Court, however, did not agree on the extent of congressional authority, so there was no majority opinion concerning the political question doctrine. None of the Justices who relied on a political question rationale thought the Court lacked jurisdiction because of the political question involved. On the merits, the plaintiffs argued that the Lieutenant Governor had no authority to cast a vote on a constitutional amendment, and that as a result the resolution had failed on an equally divided vote in the Kansas Senate.

A different majority concluded that the Supreme Court of Kansas was correct in denying relief. Chief Justice Hughes, speaking for himself and Justices Stone and Reed, found that Congress had the final authority to decide whether a constitutional amendment had been ratified in a timely fashion, and that the congressional decision would be conclusive for the courts. Less explicit was his derivation of the result in Coleman from that principle. How could Chief Justice Hughes have thought it proper to exercise jurisdiction and affirm without fully resolving the merits? In the Kansas court, the plaintiffs had sought orders that would prevent the transmission to the national government of a certification that Kansas had ratified.

Chief Justice Hughes believed that Congress was to decide on the validity of that purported act. The implication is that when the final decision is for Congress to make, the courts should not give remedies that keep from the legislature the official records that it needs to perform its quasi-judicial function.

Justice Black, speaking for himself and Justices Roberts, Frankfurter, and Douglas, was equally clear that the political question doctrine gave Congress authority conclusively to resolve a contested question of law and fact. Like Chief Justice Hughes, Justice Black thought that congressional finality on political question grounds meant that the Supreme Court of Kansas had been right to withhold relief.

And this must inevitably embarrass the course of amendment by subjecting to judicial interference matters that we believe were intrusted by the Constitution solely to the political branch of government.


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A decree like the mandamus that Coleman requested from the Kansas court would interfere with congressional decision making by limiting the official records on which Congress could base its decision. Coleman thus turned on non-judicial finality. It differed from Luther and Field v. Clark because the relevant political actor had not yet supplied the courts with a decision that they could treat as conclusive.

The Court was not being asked to respect a congressional action promulgating the Child Labor Amendment. Nor was Coleman a case in which a court could make a provisional decision subject to later correction by a conclusive political act.


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  5. Had the courts granted the relief requested, the federal government would not have received notification from Kansas that the state had ratified. If thirty-five other states had notified the Secretary of State of their ratification, but Kansas had not done so, Congress would not have been in a position to decide if Kansas had validly ratified and if the amendment had therefore become part of the Constitution.

    This aspect of the political question doctrine, like the aspect concerning recognition of sovereign relations, accords conclusive force to non-judicial decisions that apply legal rules to specific facts. Some provisions of the Constitution assign adjudicative authority to a house of Congress. In the exercise of those functions, the House and Senate apply law to fact to resolve legal disputes.


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    Under the rubric of the political question doctrine, the Supreme Court gives substantial finality to congressional decisions pursuant to these powers. Roudebush v. Hartke [] involved the extremely close election for Senate in Indiana. Incumbent Senator Vance Hartke was certified the winner by a narrow margin, and his opponent, Richard Roudebush, sought a recount under Indiana law. In Roudebush , that institution was the Senate.

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    A Caveat Against Unsound Doctrines | Monergism

    The question of congressional finality arose a few years earlier in Powell v. McCormack , [] which involved the qualifications of U. Adam Clayton Powell, elected to the House from New York, sought a declaration that his exclusion from the 90th Congress had been unlawful. The meaning of that provision, and the location of the power to interpret and apply it, came before the Court in Nixon v. United States.

    Nixon v. The Court may have held that a Senate judgment of conviction is absolutely final and subject to no reconsideration by the courts. It is also possible that, like Powell , Nixon v. United States recognized a narrower form of finality as to an issue, not the result and everything that went into it. The specific issue was whether the procedures the Senate used qualified as a trial under Article I, Section 5. That line of reasoning suggests that Senate judgments of conviction are absolutely final, and that the courts may not independently decide any question on which such a judgment rests.

    United States found substantial non-judicial finality under the political question rubric. Most likely the case means that Senate impeachments are absolutely conclusive as far as the courts are concerned, but the opinion can be read more narrowly. Each of the three leading cases in which the Court has relied on the political question doctrine— Luther , Coleman , and Nixon v.

    United States —rests on non-judicial finality. Contemporary political question doctrine incorporates the principle that courts may not grant remedies that would control non-judicial decisions to an impermissible extent.